The 19th century jurist, Savigny, said that law evolves through “silently operating powers, not by the arbitrary will of the law giver”. The Constitution is not a hammer to beat people with, but an ideal that allows for steady, organic evolution. While ensuring that popular morality does not castigate minorities, it provides spaces for change. In the context of the triple talaq case, this needs to be underscored. It must not seem that this case is less about gender and more about eroding the identity of a community that defines itself by its religion and culture.
The point is “religion and the Constitution” and not “religion versus the Constitution,” as Pratap Bhanu Mehta has projected in ‘No dark spaces’ (IE, May 18). Religious practice cannot trump constitutional morality, he writes. He forgets that freedom of religion is a part of constitutional morality as contained in Part III of the Constitution. Article 25 guarantees “freedom of conscience and free profession, practice and propagation of religion”.
The triple talaq abolitionists plead erosion of the fundamental right of women to equality since the right to unilaterally revoke a contract leaves her vulnerable. Any husband (of any community) calling for a divorce against the wishes of the wife is painful. However, resistance to divorce by one spouse does not preclude the other from asking for it. If one wants out of the marriage, the other cannot seriously insist on a meaningful continuance of the marriage. To view it any other way implies that a woman is vulnerable without male protection, even if it is dissatisfying.
Women suffer not so much from the divorce as economic disempowerment. Such disempowerment is not rooted in triple talaq, but owes to several other causes which affect not just the lives of Muslim women but those of women belonging to other religions as well. For instance, the Dowry Prohibition Act makes an exception for “customary” gifts. The dowry problem rages on because bridegrooms use this exception clause as the eye of the needle through which they drag their cars and electrical appliances. The thrust of the women’s empowerment process needs to be on economic rights.
Coming to the argument on declaring a personal law “unconstitutional”, the position of the respondents in the triple talaq case is that since the government has not legislated on it, there is no enactment for the court to rule upon. Their argument is drawn from the Bombay High Court’s ruling in the Narasu Appa Mali case, which drew the boundaries of what the court can do, saying that legislation is the realm of Parliament alone. Judiciary will test an enactment on the touchstone of constitutional rights. As a result, all personal law is protected. Hindu personal law that is not codified is similarly protected from a direct challenge in court.
Islam as a practice is legalistic with detailed rules on conduct. The forms of divorce are part of its religious practice. One may not agree with it, but Muslims have a right to practice it. If the community has differences on codes of practice, it will resolve them itself. Muslims also have the right to question being represented by the All India Muslim Personal Law Board. In fact, there is a Muslim women’s board as well.
Mehta’s reference to the Constitution’s 9th Schedule obfuscates the issue since that pertains to enacted law. The reference to the Delhi High Court judgment and the unfortunate analogy of a bull in a china shop has been criticised over the years. Mehta relies on Flavia Agnes’s view on the judgment but during the hearing on the triple talaq case, she supported the anti-abolitionists, stressing the morality of pluralism, which court interference was in danger of eroding.
Islamic personal law emanates from a contractual form of marriage that can be terminated by either party (women have the right of khula). Similarly, Hindu law recognises panchayati divorce and the Hindu Marriage Act protects this custom. The advantage of these procedures is that they do not require a decade-long litigation to persuade a court to deny or allow a divorce.
Economic empowerment of women as the route to an egalitarian society cannot be fixed by the Supreme Court in a single stroke. There is considerable legislation for that. To interfere in the rights of a minority community may make the Muslim woman even more vulnerable because all religions are still in the realm of oppressive patriarchy and it should not seem that Muslim women have been isolated as pawns in a deeper agenda coloured by political interests based on communalism. Justice must be done but it must also seem to be done to Muslim women and their community.
The writer is an advocate and author of ‘Intimacy Undone: Law of Marriage, Divorce and Family in India’